[2021] KEHC 6632 (KLR)
The court found that the appellant had satisfied the requirements for stay of execution pending appeal as set out in Order 42 Rule 6 of the Civil Procedure Rules. The appellant demonstrated that the decretal sum was substantial and that the respondents' financial means were unknown, raising the risk of substantial...
Source-derived case information.
- Citation
- [2021] KEHC 6632 (KLR)
- Parties
- Appellant: Wilson Ondicho Mboga; Respondent: Nicholas Maina Arisi & Thomas Morara Ondari (Suing as the Legal Administrators of the estate of Alice Kwamboka (Deceased))
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E3 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- application for stay of execution granted with conditions
- Judges
- EM Muchoki
- Legal Topics
- Stay of Execution, Security for Decree, Appeal Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Wilson Ondicho Mboga
Appellant
Nicholas Maina Arisi & Thomas Morara Ondari (Suing as the Legal Administrators of the estate of Alice Kwamboka (Deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant has satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the appellant is willing to provide security for the due performance of the decree.
Ratio Decidendi
The court found that the appellant had satisfied the requirements for stay of execution pending appeal as set out in Order 42 Rule 6 of the Civil Procedure Rules. The appellant demonstrated that the decretal sum was substantial and that the respondents' financial means were unknown, raising the risk of substantial loss if the appeal succeeded and the sum could not be recovered. The application was made without unreasonable delay, and the appellant expressed willingness to provide security. Therefore, the court granted the stay of execution on condition that the entire decretal sum be deposited in court or in a joint interest-earning account within 21 days.
Court Disposition
application for stay of execution granted with conditions
Orders
- Stay of execution granted pending appeal on condition that the appellant deposits the entire decretal sum in court or in an interest-earning account in the joint names of the advocates within 21 days.
- The applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
CIVIL APPEAL NO. E3 OF 2021
WILSON ONDICHO MBOGA.........................................................................................APPELLANT
VERSUS
NICHOLAS MAINA ARISI & THOMAS MORARA ONDARI
(Suing as the Legal Administrators of the estate of
ALICE KWAMBOKA (Deceased)...............................................................................RESPONDENTS
{Being an appeal against the Judgement of Hon. W. C. Waswa (Mr.) – RM Nyamira
dated and delivered on the 18th day of December 2020 in the original Nyamira
Chief Magistrate’s Court Civil Case No. 189 of 208}
RULING
This is a ruling on the appellant’s application in the Notice of Motion dated 15th February 2021, filed herein on even date, seeking a stay of execution pending hearing and determination of this appeal. The application is brought under Order 42 Rule 6 of the Civil Procedure Rules.
The application was heard by way of written submissions. I have considered the rival submissions carefully. Order 42 Rule 6 of the Civil Procedure Rulesprovides that an application for an order for stay of execution must fulfill the following conditions: -
That substantial loss may result unless the order is made.
That the application has been made without unreasonable delay.
That the applicant is willing to deposit such security as the court shall order for the due performance of such decree as may ultimately be binding on him.
Applying the above provisions to this application I am satisfied that the same meets the criteria for grant of the order sought. The award which is the subject of the appeal is a substantial amount. The applicant having prima facie demonstrated that the respondent would not be in a position to refund the same, the respondents have not offered any evidence to rebut the allegation that their financial means are unknown. I also have no difficulty in making a finding that the application was made timeously.
Accordingly, the application is granted but on a condition that the appellant/applicant shall within 21 days of this ruling deposit the entire decretal sum either in court or in an interest earning account in the joint names of the Advocates on either side. The applicant shall also bear the costs of the application. It is so ordered.
Ruling signed, dated and delivered in Nyamira (Electronically via Microsoft Teams) this 27th day of May 2021.
E. N. MAINA
JUDGE